Judge: Lisa R. Jaskol, Case: 22STCV36039, Date: 2025-01-16 Tentative Ruling
Case Number: 22STCV36039 Hearing Date: January 16, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On November 15, 2022, Plaintiff Josue Sierra (“Plaintiff”) filed this action against Defendants Food 4 Less of California, Inc., The Kroger Co., and Does 1-50 for general negligence and premises liability.
On January 20, 2023, Defendant Food 4 Less of California, Inc. dba Food 4 Less (incorrectly named and served as Food 4 Less of California, Inc.) (“Defendant”) filed an answer.
On July 25, 2024, Defendant filed a motion for summary judgment. The motion was set for hearing on November 26, 2024. On November 12, 2024, Plaintiff filed an opposition. On November 21, 2024, Defendant filed a reply. The Court continued the hearing to January 16, 2025.
Trial is currently set for April 2, 2025.
PARTIES’ REQUESTS
Defendant asks the Court to grant summary judgment.
Plaintiff asks the Court to deny the motion.
DEFENDANT’S EVIDENTIARY OBJECTIONS
Sustained: 5, 6
Overruled:
1, 2,
LEGAL STANDARD
A. Summary judgment
“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)
B. Negligence and premises liability
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)
“Landowners under California law are required to maintain land in their possession and control in a reasonably safe condition.” (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 663 (Williams), citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).) “The underlying principle, set forth in Civil Code section 1714, subdivision (a), is that “‘[e]veryone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .’” (Ibid.) This rule “‘establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.’” (Ibid., quoting Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083 (Vasilenko); see Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214.)
“ ‘ “ ‘Courts ... invoke[ ] the concept of duty to limit generally “the otherwise potentially infinite liability which would follow from every negligent act ....” ’ ” ’ ” (Williams, supra, 37 Cal.App.5th at p. 663, quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Our Supreme Court has explained that an exception to the general rule of Civil Code section 1714 must be “ ‘ “ ‘clearly supported by public policy.’ ” ’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Courts look to what are commonly called ‘the Rowland factors’ in determining whether policy considerations favor such an exception.” (Ibid., citing Vasilenko, supra, 3 Cal.5th at p. 1083.) “These are “ ‘ “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland [v. Christian (1968)] 69 Cal.2d [108,] 113, 70 Cal.Rptr. 97, 443 P.2d 561 [(Rowland)].)’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083.)
In
considering the Rowland factors, the court “determine[s] ‘not whether
they support an exception to the general duty of reasonable care on the facts
of the particular case before us, but whether carving out an entire category of
cases from that general duty rule is justified by clear considerations of
policy.’ ” (Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 629.)
In
addition, “[c]ausation is an essential element of plaintiff’s complaint.” (Christoff v. Union Pacific Railroad Co.
(2005) 134 Cal.App.4th 118, 126 (Christoff).) “Causation may be determined as a question of
law if reasonable minds would not differ.”
(Ibid.) “If causation is
lacking, the complaint cannot stand.” (Ibid.
[“the trial court’s ruling of lack of causation disposes of the entire
complaint and suffices to affirm summary judgment in favor of defendant”].)
C. Open and obvious conditions
“As a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property.” (Christoff, supra, 134 Cal.App.4th at p. 126.) “There is no duty to warn of an obvious danger but the possessor of land does have a duty to warn an invitee not only of conditions known by him to be dangerous but also of conditions which might have been found dangerous by the exercise of ordinary care. [Citation.] The invitor may assume that an invitee will perceive that which would be obvious to him through the ordinary use of his senses. [Citation.]” (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.)
“Foreseeability of harm is typically absent when a dangerous condition is open and obvious. [Citation.] ‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’ [Citation.] In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition.” (Montes v. Young Men’s Christian Assn. of Glendale, California (2022) 81 Cal.App.5th 1134, 1140 (Montes), quoting Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447 (Jacobs).)
A defendant may owe a duty of care even where a dangerous condition is open and obvious, “when ‘it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it).’ ” (Montes, supra, 81 Cal.App.5th at p. 1140, quoting Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122 (Osborn).) “In other words, ‘the obviousness of the condition and its dangerousness ... will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.’ ” (Ibid., quoting Jacobs, supra, 14 Cal.App.5th at p. 447.)
Courts have found it was foreseeable that a plaintiff would “choose to encounter” an obviously dangerous condition when the plaintiff’s employment required him to walk across an area to complete his work. (Montes, supra, 81 Cal.App.5th at p. 1140, citing Osborn, supra, 224 Cal.App.3d at pp. 109–110, 123; Florez v. Groom Development Co. (1959) 53 Cal.2d 347, 358–359.) In addition, the court in Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1185, “determined there was a practical necessity for the plaintiff to walk across wet pavement because the pavement was the ‘principal if not sole access way from the street to defendant's building, which housed a government office serving the public.’ ” (Ibid., quoting Jacobs, supra, 14 Cal.App.5th at pp. 447–448.)
DISCUSSION
A. The complaint
The complaint alleges the following:
On or about January 28, 2021, at or near 5318 S. Main Street in Los Angeles (“premises”), Plaintiff tripped on an unmarked and/or unsecured pallet and/or similar object, causing him to fall and suffer injuries. Defendants had sole and exclusive custody and control of the premises and owed Plaintiff a duty to keep the premises in a good and safe condition.
Defendants were negligent and careless in the ownership, care, control, maintenance, operation, leasing, management, caretaking, repairing, of the premises, in that they caused and permitted the premises to be and remain in a dangerous and unsafe condition by causing or permitting structures and/or components and/or other parts of the building to be and remain deficient.
In addition, Defendants were negligent, careless and reckless in that they failed to properly warn of the dangerous conditions, and in that they failed to properly protect the area of the dangerous conditions. Defendants knew, or should have known in the exercise of reasonable care, that the exposure to an unmarked and/or unsecured broom and/or similar object in the premises was in a dangerous and defective and unsafe condition, and a menace to Plaintiff and others on the premises.
“By reason of the aforesaid negligence, carelessness and recklessness of Defendants, and each of them, as aforesaid, and as a direct and proximate result thereof, dangerously unmarked and/or unsecured broom and/or similar object that was not properly installed, maintained, cleaned and/or protected at said property causing Plaintiff to sustain the injuries and damages as hereinafter alleged.”
B. Undisputed facts
Firewood was stacked on the pallet on which Plaintiff allegedly tripped. A surveillance video shows Plaintiff navigating around the pallet before he fell.
C. Defendant’s motion for summary judgment
1. Defendant has not carried its initial summary judgment burden of proving the allegedly dangerous condition was open and obvious
Defendant argues that the pallet stacked with firewood on which Plaintiff tripped and fell was an open and obvious condition, relieving Defendant of liability.
To support this argument, Defendant has presented evidence that, before the accident, Plaintiff visited Defendant’s store about twice a week. (Sierra depo. p. 68.) In addition, based on Defendant’s interpretation of the surveillance video, Defendant asserts: (1) the area where Plaintiff fell was lit and nothing obstructed Plaintiff’s view of the pallet, (2) the firewood was stacked hip-high on the pallet, (3) there is no indication that Plaintiff did not see the pallet displaying firewood, (4) the firewood stacked on the pallet was a different color than the floor and its surroundings, and (5) the video does not show Plaintiff’s foot touching the pallet. (Defendant’s separate statement of undisputed facts 5-6, 8-10.)
The Court has reviewed the video lodged with Defendant’s moving papers. While the video footage could support Defendant’s interpretation, Defendant has not negated the reasonable possibility that Plaintiff can present evidence supporting a different interpretation of the video footage. In particular, the video appears to show that Plaintiff saw the pallet and walked part of the way around it. However, at his deposition, Plaintiff testified, “I don’t know how it caught my foot, but it was protruding at one end. One of the corners was sticking out.” (Sierra depo. p. 37.) If, as Plaintiff suggests, he tripped on something protruding from the pallet which he did not see, a trier of fact could find that the dangerous condition was not open and obvious.
Defendant argues that the video does not show Plaintiff’s foot touching the pallet. The video lodged with Defendant’s moving papers does not include footage of Plaintiff’s fall. Therefore, the Court cannot assess whether the video appears to show Plaintiff’s foot touching the pallet or anything on the pallet. In addition, the video quality is poor, making it unlikely that the Court could definitively determine whether Plaintiff’s foot touched the pallet even if the video included footage of Plaintiff’s fall.
Considering the evidence and the inferences reasonably drawn from it in the light most favorable to Plaintiff (see Aguilar, supra, 25 Cal.4th at p. 843), the Court finds that Defendant has not carried its initial summary judgment burden of showing the allegedly dangerous condition was open and obvious. Even assuming Defendant carried its initial summary judgment burden, Plaintiff has raised a triable issue of fact on this issue.
2. Defendant has not carried its initial summary judgment burden of
showing it owed Plaintiff no duty
Defendant has failed to carry its initial summary judgment burden on this issue for the same reason that it failed to carry its initial summary judgment burden on its argument that the allegedly dangerous condition was open and obvious. Even assuming Defendant carried its initial summary judgment burden, Plaintiff has raised a triable issue of fact on this issue for the reasons stated above.
3. Defendant has not carried its initial summary judgment burden of showing
the allegedly dangerous condition was a trivial defect
The Court denies the motion.
CONCLUSION
The Court DENIES Defendant Food 4 Less of California, Inc. dba Food 4 Less’s motion for summary judgment.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.